Kerala High Court
Basheer P.V vs State Of Kerala on 9 July, 2010
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18710 of 2009(G)
1. BASHEER P.V., CLERK
... Petitioner
2. MUSTHAFA V.V., FULL TIME MENIAL
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS
3. THE DEPUTY DIRECTOR OF EDUCATION
4. THE DISTRICT EDUCATIONAL OFFICER
5. THE MANAGER, D.H.O.H.S.S
For Petitioner :SRI.K.JAJU BABU
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :09/07/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) No.18710 OF 2009
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Dated this the 9th day of July, 2010
J U D G M E N T
The first petitioner was appointed as Full Time Menial by the fifth respondent Manager in DHOHS School by Ext.P1 order, dated 8.12.2005. The said appointment was in the vacancy that arose on the resignation of Sri.K.V.Shakeer, with effect from 28.2.2005. By Ext.P4 order dated 27.1.2006, the District Educational Officer, Tirur, declined to approve the said appointment, on the ground that the Manager had failed to absorb protected hands. The fifth respondent appealed against Ext.P4 order by filing an appeal before the Deputy Director of Education, Malappuram. While that appeal was pending, a leave vacancy of Clerk arose in the school, when the incumbent Sri.P.V.Sherafudheen availed leave without allowances for a period of 5 years from 10.12.2004. In that vacancy, by Ext.P2 order dated 13.3.2006, the fifth respondent appointed the first petitioner as Clerk with effect from 13.3.2006. By Ext.P5 order passed on 10.4.2006, the District Educational Officer, Tirur, W.P.(C) No.18710/2009 2 declined to approve the appointment of the first petitioner as Clerk stating that the said appointment can be approved only after his appointment as Full Time Menial is approved.
2. In the vacancy that arose on the promotion of first petitioner as Clerk, the fifth respondent appointed the second petitioner as Full Time Menial, by Ext.P3 order, dated 13.3.2006. The District Educational Officer, Tirur, declined to approve the said appointment by Ext.P6 order, dated 10.4.2006, on two grounds. The first ground was that the first petitioner's appointment as Clerk has not been approved and therefore, it cannot be said that a vacancy of Full Time Menial has arisen. The second reason stated was that the Manager is bound to absorb protected hands. Aggrieved by Ext.P4, the fifth respondent filed an appeal before the Deputy Director of Education, Malappuram. He did not however challenge Ext.P5 order declining to approve the first petitioner's appointment as Clerk. The fifth respondent filed another appeal before the Deputy Director of Education, Malappuram, challenging Ext.P6 W.P.(C) No.18710/2009 3 order declining to approve the second petitioner's appointment as Full Time Menial. By Ext.P7 order passed on 17.5.2006, the Deputy Director of Education, Malappuram, held that the appointment of the first petitioner as Full Time Menial was rightly rejected for the reason that the school being a newly opened one, the vacancy should have been filled up by appointing protected hands. Reliance was placed on G.O.(P) No.178/02/G.Edn., dated 28.6.2002, in support of the said conclusion. Later, by Ext.P8 order, dated 4.8.2006, the Deputy Director of Education, Malappuram, rejected the appeal filed by the fifth respondent from Ext.P6 order, whereby the District Educational Officer declined to approve the second petitioner's appointment as Full Time Menial.
3. Aggrieved by Exts.P7 and P8 orders, the fifth respondent filed separate revision petitions before the Director of Public Instruction. By Exts.P9 and P10 orders passed on 11.6.2007, both the revision petitions were rejected on the short ground that the Manager has not absorbed protected hands W.P.(C) No.18710/2009 4 while appointing the petitioners. The fifth respondent thereupon filed a revision petition before the Government. By Ext.P11 order passed on 4.2.2008, the revision petition was rejected. The Government held that the Manager ought to have appointed protected hands in terms of the stipulation in G.O.(P) No.178/02/G.Edn., dated 28.6.2002. Exts.P4 to P11 orders are under challenge in this writ petition wherein the petitioners seek a direction to the respondents to approve their appointments. It is contended that the list of protected non- teaching staff of the education district was never forwarded to the Manager, and therefore, the Manager cannot be found fault with for not having absorbed protected hands. Though the respondents have been served, they have not chosen to file a counter affidavit controverting the above contention.
4. I heard Sri.Brijesh Mohan, learned counsel appearing for the petitioners and Smt.Smitha Sukumaran, learned Government Pleader appearing for respondents 1 to 4. I have also considered the pleadings and the materials on record. W.P.(C) No.18710/2009 5 The school in which the petitioners were appointed is a newly sanctioned school. The fifth respondent had while applying for permission to open the school, executed an agreement as required under rule 6(viii) of Chapter V of the Kerala Education Rules, expressing his willingness to absorb qualified teachers/non teaching staff who, after putting in service of 2 years and drawing 2 vacation salaries, have been retrenched from any of the aided high schools in the education district or aided primary schools in the education sub-district in which the school is opened. The fifth respondent's school is situated in Tirur education sub district. It is not in dispute that in Malappuram revenue district, there are two education sub- districts, viz., Wandoor and Tirur. Therefore, on the terms of rule 6 (viii) of Chapter V of Kerala Education Rules, the fifth respondent was bound to appoint qualified teachers/non teaching staff of the education district, who have been given the benefit of protection under the protection orders issued by the Government.
W.P.(C) No.18710/2009 6
5. In the instant case, the authorities have declined to approve the appointments of the petitioners on the short ground that the Manager has not absorbed protected hands. The first petitioner's appointment as Clerk was declined on the ground that his appointment as Full Time Menial has not been approved. Like wise, the second petitioner's appointment as Full Time Menial in the vacancy that arose on the appointment of the first petitioner as Clerk was not approved on two grounds. The first reason is that the vacancy cannot be said to have arisen as the first petitioner's promotion is not approved and the second reason was that the Manager has not absorbed protected hands. In other words, it is because of the non- absorption of protected hands that the appointments in question have not been approved. The original/ appellate/revisional authorities and the Government have relied on G.O.(P) No.178/02/G.Edn., dated 28.6.2002, to hold that the appointments of the petitioners are not in order. W.P.(C) No.18710/2009 7
6. The Government order, G.O.(P) No. 178/02/G.Edn., dated 28.6.2002, reads as follows:-
ORDER As per the Government Order read as 1st paper above additional economy measures had been imposed, to overcome the precarious financial condition of the State. As part of these measures, in the G.O. read as 2nd paper above it has been interalia ordered that Government will take all possible steps to redeploy the maximum number of protected teachers by 30.6.2002 and that orders on the modalities and procedures for deployment of protected teachers will be issued seperately. Accordingly Government are now pleased to issue the following guidelines for the redeployment of protected teachers.
(i) The management of newly opened/upgraded aided schools shall fill up all the existing/arising vacancies in their schools by appointing protected teachers.
The Deputy Director of Educations concerned shall make available district- wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers.
(ii) The schools under Corporate Managements shall be treated as a single unit and the protected teachers under them shall be appointed in the existing/arising vacancies in those schools.W.P.(C) No.18710/2009 8
(iii) Protected teachers under various
managements shall be appointed in the
schools under the respective
managements, against the existing/arising vacancies in the categories of has/UPSA/LPSA/Language teacher by protecting their salary in the original posts.
They shall be absorbed in their original post as and then vacancies arise in those categories. Minimum subject requirement should be ensured while accomodating protected teachers in High Schools.
(iv) In respect of schools where there are protected teachers, all of them should be absorbed in the existing/arising vacancies as provided in (iii) above. The remaining vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs. In schools where there are no protected teachers, the existing/arising vacancies shall be filled up in the ratio 1:1 between protected teachers and appointments in accordance with KERs first priority being given to appointment of protected teachers.
(v) The Protected teachers shall be deployed against the vacancies, if any, under, Sarva Siksha Abhiyan/DPEP/IT @ school/State Literacy Mission, subject to the specific condition that such appointment does not involve the creation of any additional post.
(vi) Protected teachers shall be deployed in vacancies in schools under local self Government institutions.
W.P.(C) No.18710/2009 9
(vii) The existing language/specialist teachers who become protected shall be appointed by creation of posts on clubbing arrangement of nearby schools, subject to the specific condition that such posts shall be abolished as and when they retire from service.
(viii) Teachers retained under 1:40 ratio shall also be considered as protected and deployed as per these guidelines.
(ix) The protected teachers who are to retire from service on or before 31.5.2003 shall be excepted from redeployment and allowed to continue in their parent schools till their retirement.
(x) Protected Physical Education teachers in
the High School/U.P.Section shall be
appointed in the regular vacancies, if any, arising in H.S./U.P. Section, since the qualification of both U.P./H.S. Physical Education teachers are the same.
(xi) Full time language teachers having
minimum 8 periods and 5 years service
need not be treated as protected.
However, their service can be utilised by other schools also on clubbing basis.
(xii) Language teachers working in Full Time Posts by virtue of 'Group C' diversion need not be treated as protected.
(xiii) The excess protected teachers who could not be deployed by the above means shall be retrenched from their parent schools with effect from 1.7.2002 and they shall be paid 50% Salary.
(xiv) The protected teachers shall be willing to W.P.(C) No.18710/2009 10 undertake any duty/responsibility as may be entrusted. Unwillingness to undertake the work assigned to them as per redeployment, will render them ineligible for the benefit of protection and eligibility for salary.
7. On the terms of the above Government order, it is evident that it applies only to the appointment of teachers. Even in that Government order, in clause (1) it is stipulated that the Deputy Director of Education concerned shall make available district-wise and category wise list of protected teachers on the basis of total length of service to be so appointed by the Managers. Hence, on the terms of the Government order, dated 28.6.2002, the said Government order can have no application to the case on hand. The Manager of an aided school in a district (Malappuram District) cannot have personal knowledge of all protected hands in that district or education sub districts who are required to be absorbed in terms of rule 6(viii) of Chapter V of the Kerala Education Rules. Necessarily therefore such information should be made available to the Managers of newly W.P.(C) No.18710/2009 11 opened schools by the concerned District Education Officers. In the instant case, though the Government have stated in Ext.P11 order that two protected hands are available in Malappuram District for absorption, the Government have not disclosed the names of the two protected hands or the point of time at which they became protected hands. The official respondents have also not chosen to file a counter affidavit explaining the availability of such protected hands in the education district, at the point of time, when Exts.P1, P2 and P3 orders were issued. In such circumstances, I am of the considered opinion that the Manager cannot be found fault with for having appointed persons from the open market. The District Education Officer, Tirur and the Deputy Director of Education, Malappuram, should be deemed to be aware of the fact that fifth respondent has been permitted to open a new school in Tirur education sub district. If that be so, it was their duty to supply information regarding protected non-teaching staff in the education district to the Manager. That having admittedly not been done, I am of the W.P.(C) No.18710/2009 12 considered opinion that the reasons given by the original/appellate/revisional authorities and the Government for declining to approve the appointments of the petitioners cannot be sustained.
In the result, I allow the writ petition, quash Exts.P4 to P11 orders, and direct the fourth respondent to approve the appointment of the first petitioner as Full Time Menial with effect from 8.12.2005, if his appointment is otherwise in order and as Clerk with effect from 13.3.2006, if a vacancy of Clerk was in existence on that date. The appointment of the second petitioner as Full Time Menial shall be approved subject to the rider that such approval shall be for the period during which the first petitioner continues to work as Clerk in the school in the leave vacancy of Sri.P.V.Sherafudheen. Final orders in the matter shall be passed within six weeks from the date on which the petitioners produce a certified copy of this judgment before the fourth respondent. Needless to say, the fourth respondent shall also take steps to draw and disburse arrears of salary and W.P.(C) No.18710/2009 13 allowances to the petitioners within one month from the date of grant of such approval.
P.N. RAVINDRAN, JUDGE.
nj.